D.W. v. J.W.B. (Ex parte J.W.B.)

• Decision Date: 01 July 2016
• Docket Number: 1150075.
• Parties: Ex parte J.W.B. and J.J.B. (In re D.W. v. J.W.B. and J.J.B.)
• Court: Alabama Supreme Court

230 So.3d 783

Ex parte J.W.B. and J.J.B.

(In re D.W.

v.J.W.B. and J.J.B.)

1150075.

Supreme Court of Alabama.

July 1, 2016.

Rehearing Denied September 23, 2016.

Randall W. Nichols of Massey, Stotser & Nichols, P.C., Birmingham; and David P. Broome of Law Offices of David P. Broome, Mobile, for petitioners.

Renee E. Thiry of Thiry & Caddell, LLP, Mobile; and Scott W. Hunter, Daphne, for respondent.

STUART, Justice.

This Court issued a writ of certiorari to consider whether the Court of Civil Appeals erred in reversing in part the Mobile Probate Court's judgment on partial findings denying D.W.'s adoption contest on the basis that no common-law marriage existed and reversing the probate court's judgment granting the petition of J.W.B. and J.J.B. ("the adoptive parents") to adopt B.W.B. ("the child"). See D.W. v. J.W.B., 230 So.3d 763 (Ala.Civ.App.2015). We reverse and remand.

Facts and Procedural History

D.W. and J.B. were married on January 25, 2011. D.W. and J.B. were divorced on June 14, 2012. The testimony at trial indicated that the child was conceived in late September or early October 2012. The child was born on June 17, 2013. J.B. did not disclose the identity of the child's biological father at delivery. D.W. did not register his intent to claim paternity of the child, pursuant to the Alabama Putative Father Registry Act, see § 26–10C–1 et seq., Ala.Code 1975 ("the PFRA"). Immediately after the birth of the child, J.B. placed the child for adoption.

On June 19, 2013, the adoptive parents filed a petition in the probate court seeking to adopt the child. In the petition the adoptive parents identified J.B. as the biological mother of the child and indicated that the biological father's name was unknown. Subsequent to the filing of the petition, the adoptive parents informed the probate court that J.B. and D.W. had applied for a marriage license a few months before the child's birth and that "[t]he natural mother's ex-husband [D.W.] will need to be served with a petitioner's notice of hearing because there is concern that [D.W. and J.B.] may have [been] married" when the child was born. On August 16, 2013, D.W. moved to contest the adoption. In his motion, D.W. stated:

"At the end of July 2013, [D.W.] was informed by counsel Donna Ames the child was to be placed for adoption.

"[D.W.] is a presumed father [because] § 26–10A–7(a)(3), [Ala.Code 1975,] states:

" '[Consent is required of t]he adoptee's presumed father, regardless of paternity, if:

" 'a. He and the adoptee's mother are or have been married to each other and the adoptee was born during the marriage or within 300 days after the marriage was terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation was entered by a court or

" 'b. Before the adoptee's birth, he and the adoptee's mother have attempted to marry each other by a marriage solemnized in apparent compliance with the law, although the attempted marriage is or could be declared invalid, and,

" '1. If the attempted marriage could be declared invalid only by a court order, the adoptee was born during the attempted marriage or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce; or,

" '2. If the attempted marriage is invalid without a court order, the adoptee was born within 300 days after the termination of cohabitation.'

"[D.W.] is presumed the father whether a common law marriage is determined or not.

" § 26–10A–7 requires the father's consent or his relinquishment. Neither is given by [D.W.].

"[D.W.] never abandoned the child as defined in § 26–10[A]–9¹ because he provided support during the course of the pregnancy and left Mobile to work after being informed the child was dead.

"[D.W.] is entitled to notice under § 26–10A–7 as the father is known under § 26–10A–17.² "

On October 8, 2013, the probate court conducted a pretrial conference with the parties to discuss D.W.'s motion to contest the adoption. On October 10, 2013, the probate court entered an order scheduling discovery. The order also identified the triable issues:

"A. Whether or not D.W. has standing to file the contest to the adoption of [the child].

"B. Whether or not D.W. is a 'presumed father' for purposes of the Alabama Adoption Code."

The order also stated that "[t]he court will reconsider any portion of this order upon timely application of any party." The record does not include any filings asking the probate court to reconsider its October 10, 2013, order.

On December 17, 2013, the adoptive parents moved to dismiss D.W.'s adoption contest on the ground that he had failed to register pursuant to the PFRA before or within 30 days of the child's birth. See § 26–10C–1(i), Ala.Code 1975. The adoptive parents argued that D.W.'s failure to register constituted an irrevocable implied consent to the adoption. On January 14, 2014, D.W. filed his response to the adoptive parents' motion to dismiss his contest to the adoption. In his response, D.W. argued that, because he is the child's presumed father, he was entitled to notice. On February 17, 2014, the probate court denied the adoptive parents' motion to dismiss.

On July 3, 2014, the adoptive parents moved for a summary judgment. In their amended motion filed on July 8, 2014, the adoptive parents argued that because, they said, no facts would give rise to any reasonable question as to whether there had been a common-law marriage, they were entitled to a summary judgment in their favor on the issue whether a common-law marriage existed between D.W. and J.B. so as to make D.W. the presumed father of the child and that the adoption should be finalized. On July 15, 2014, D.W. responded to the adoptive parents' motion for a summary judgment, arguing that genuine issues of material fact existed as to whether a common-law marriage existed between him and J.B. Specifically, he argued:

"It is undisputed that D.W. and [J.B.] were subsequently intimate after the divorce and conceived [the child] together. D.W. asserts and provides substantial evidence that the two reconciled and became husband and wife again."

On July 25, 2014, the probate court conducted a hearing on the adoptive parents' amended summary-judgment motion and D.W.'s response. On July 28, 2014, the probate court entered an order, denying the motion for a summary judgment. Additionally, the order stated:

"The triable issues in this cause identified at this time:

"a. Whether D.W. is a 'presumed father' for purposes of the Alabama Adoption Code, which centers on whether D.W. was the common law spouse of [J.B.], the birth mother, at the time of the birth of [the child].

"b. Whether or not D.W. has standing to file the opposition to the adoption of [the child].

"c. Whether or not D.W. has impliedly consented to the proposed adoption.

"d. Whether the adoption of [the child] should be granted."

The order also provided that "[t]he court will reconsider any portion of this order upon timely application of any party." The record does not contain any filings asking for the probate court to reconsider its July 28, 2014, order.

The probate court conducted the trial on October 14 and 15, 2014. Before the trial commenced, the following occurred:

"[The Court]: Okay. Before we proceed further, I want to make certain we're clear on the procedure we're going to follow.

"I think the primary issue—the first issue that needs to be addressed is whether or not [D.W.] was married to [J.B.] through a common law marriage. That's the threshold issue that's got to be determined by the Court.

"So I would think, and if you disagree I want you to speak up now, I'm going to let [D.W.] start out to prove—present evidence in support of that.

[Adoptive parents' counsel]: He has the burden of proof. I agree.

THE COURT: Right. And then [the adoptive parents] will have the right to cross-examine and present anything in rebuttal to that. And then, [D.W.]'s going to have the right—well, not rebuttal but present anything you want to present adverse to that.

"[Adoptive parents' counsel]: Judge, defense.

"THE COURT: Right. Defense. And then, [D.W. has] a right of rebuttal.

"[Adoptive parents' counsel]: That's correct.

"THE COURT: And so we're going to take up the common-law-spouse issue first.

"And then depending on that it will determine how we proceed as to the other issues that are outlined in the pretrial conference order in terms of the adoption case in chief?

"Are we clear?

"[Adoptive parents' counsel]: Yeah, I hear you. I think so.

THE COURT: Okay. I just wanted to make certain we're all on the same page before we jump in the water and start swimming.

"All right. [D.W.'s counsel], are you ready to proceed?

"[D.W.'s counsel]: Yes, sir, Judge."

(Emphasis added.)

At trial conflicting testimony was presented as to whether D.W. and J.B. were involved in a common-law marriage in June 2013 when the child was born. Evidence was presented indicating that following the divorce D.W. and J.B. had lived together and that they were seen together at church, at softball games, and at family events; that D.W. and J.B., as a couple, had revealed the gender of the unborn child at one of D.W.'s softball games; that they had obtained a marriage license; that during the pregnancy J.B. had signed her married name [J.B.W.] on Medicaid forms; and that D.W. and J.B. had filed a joint tax return for 2012. Evidence was also presented indicating that D.W. had attended prenatal medical appointments with J.B., had made the insurance co-payments for some of those visits, had purchased items for the unborn child, had had a crib at his apartment,³ and had cared for the mother during her pregnancy.

In contrast, evidence was presented indicating that J.B. had not resided with D.W. since their divorce, that she lived with her parents after the divorce, that she did not believe that she and D.W. had had a common-law marriage, that she and D.W. had not had consensual sexual intercourse since the divorce, and that she had no intent to remarry D.W.

The evidence...